1. ABDUL QADEBR CAUDHARY (CAN).-The appellant joined service on 24-11-1958 as Assistant Engineer Class-II. He was promoted as Executive Engineer on 3-10-1964. On 27-4-1968 a departmental enquiry was directed against the appellant to probe into the allegations of excess expenditure. The appellant was dismissed from service and debarred from future employment under any Government on 16-3-1971. It is the contention of the respondent that the appellant was not holding any substantive post as Executive Engineer when he was dismissed from service. The order of dismissal was issued by the Governor of Baluchistan which reads as under:- GOVERNMENT OF BALUCHISTAN COMMUNICATION AND WORKS DEPARTMENT Dated 16th March 1971
2. No. E-IV-I-79/68.-Having been found guilty of misconduct under the provisions of West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, the Governor of Baluchistan is pleased to dismiss Mr. Ghulam Mujtaba Khan, officiating Executive Engineer from Government Service in the Communication and Works Depart--ment with effect from forenoon of the sixteenth March 1971. He is also debarred from future employment under any Government."
3. It appears that the appellant was re-instated by the order dated 5-3-1974 issued by the Secretary Government of Baluchistan, Communication and Works Department. The order reads as under:- GOVERNMENT OF BALUCHISTAN COMMUNICATION AND WORKS DEPARTMEN T Dated Quetta the 5-3-1974
4. In super session of this Department Order No. 2-Eb/70/4289/E(I) dated 25-2-1974, the Government of Baluchistan is pleased to re-instate Messrs Ghulam Mujtaba Khan and Fahim Khan Afridi, Ex- Executive Engineer in service. Further details will be issued shortly.
5. Abdul Hamid Khan, Secretary to Government of Baluchistan C & W Department.
6. The record of the appellant produced by the Department shows that the order of re-instatement was passed on the direction of the then Minister for Local Government and Communication and Works Department, Mir Yousuf Ali Khan Magsi. It is mentioned in the letter of the Minister, referred to above that the charges did not mention any misappropriation or embezzelment of Government money. The contents of those charges, if established, did not constitute any misconduct, therefore, the Minister had passed the order of his re-instatement in service from 1-2-1974.
7. After his reinstatement by the order dated 25-2-1974, the appellant war appointed as Project Director Fish Harbour, Gwadur. It is the contention of the appellant that on 26-6-1976 at Gwadur, the appellant was delivered a notice dated 13-6-1976 to the effect that the appellant enjoyed persistent reputation of being corrupt and was also indulging in other mal--practices and he may therefore show cause as to why action should not be taken against him under the Baulchistan Civil Servants (Efficiency and Discipline) Rules, 1974 which may amount to award of major penalty, After service of the show-cause notice the appellant requested for extension of time and then posted his explanation. Even though that the delivery was received by the respondent No. 2, the impugned order was passed before receipt of explanation of the appellant on 17-5-1976. The Governor of Baluchistan passed the order of compulsory retirement of the appellant.
8. This order has been impugned in this appeal. The main contention of the appellant's learned counsel is that no specific allegation has been made against the appellant and the order of his retirement was made without waiting for the reply of the appellant and the appellant had not been given any opportunity of being heard before the impugned order was passed.
9. The contention of the respondent No. 1 on the other hand is that the appellant was dismissed from service and debarred from future employ--ment on 16-3-1977 by the Governor of Baluchistan. He was re-instated in service and was also exonerated of the charges by the then Minister for Communication and Works Department without approval of the competent authority that is Governor of Baluchistan. It is further contended that in view of the reasons given in the order dated 17-5-1976, it was not necessary to start proceedings in the case. The Government being the authority as well as the authorised officer initiated and finalized the action in accordance with the provisions of Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974.
10. Before examining the legality of the order dated 17-5-1976, impugned in this appeal, it is necessary to dispose of the preliminary objections raised by the learned Assistant Advocate General that the order of re-instatement made by the then Minister for C. & W. Department is a nullity in the eye of law and therefore the appellant was not appointed reinstated in accordance with law. The appellant was dismissed from service by the Governor of Baluchistan who was competent authority at' the relevant time and that order was final. In this order it is specifically stated that the appellant is debarred from future employment under any Government. In view of this order, the appellant cannot be re-instated by the Minister who was otherwise not authorised to pass any order of re-instatement.
11. There is much force in the contention of learned Mr. A. A: G. The order dated 16-3-1971 passed by the Governor of Baluchistan has become final and the validity of this order has not been challenged by the learned counsel for the appellant. He is also not able to show that the then Minister was competent to pass an order of re-instatement under the law. The learned counsel for the appellant has relied upon Article 129 of the Constitution which is reproduced here below "129. -(1) Subject to the Constitution, the Executive authority of the Province shall be exercised in the name of the Governor by the Provincial Government, consisting of the Chief Minister and Provincial Ministers, which shall act through the Chief Minister.
(2) In the performance of his functions under the Constitution, the Chief Minister may act either directly or through the Provincial Ministers.
(3) The Chief Minister and the Provincial Ministers shall be collectively responsible to the Provincial Assembly."
12. This article of the Constitution clearly provides that the executive authority shall be exercised in the name of the Governor consisting of the Chief Minister and Provincial Ministers which shall act through the Chief Minister and the Chief Minister may act either direct or through Provincial Ministers. The Rules of business framed by the Government of Baluchistan on 1-5-1972 are applicable to the present case. According to para. 37 of these rules, all cases of appointments and disciplinary actions against the holders of the posts included in the sixth schedule shall be submitted for approval of Chief Minister before the issue of orders or where the orders of the Governor are required in the terms of rule 38, before transmission to the Government.
13. The case of the appellant was not processed according to the provisions of these rules. Neither in the constitution nor in the rules of business there is any provision that a Minister can appoint or re- instate a dismissed Govern--ment servant. As Mr. Yousuf Ali Khan, the then Minister had reinstated the appellant in violation of rules and law, the order of re-instatement has not sanctity in law. Such an order has to be ignored irrespective of the fact that the appellant had gained much benefits under the cover of such illegal order.
14. The stand has been taken by the learned counsel for the appellant, that even if the order of re- instatement was not passed by the competent authority, Government is debarred to challenge the same as the order has been acted upon. In this context the emphasis has been laid upon section 2l of the General Clauses Act. By virtue of section 21 of General Clauses Act, the authority which can pass an order is entitled to vary, amend, and to or rescind that order. But this section does not help the appellant as he has not been able to show that the Minister was the appointing authority. The order of dismissal was passed by Governor of Baluchistan and that authority has neither rescinded nor varied the order passed by him. The learned counsel has also referred to certain authorities in support of his contention. PLD 1970 SC 439 wherein it has been observed that an executive authority cannot in exercise of the rule-making power or the power to amend, vary or rescind an earlier order, take away the rights vested in the citizens by law. If a person had acquired a vested right of exemption from the levy of excise duty on all the goods produced or manufactured by it for a period of four years under Notification No. S. R. O. 35 (R)/61 of the Central Government that vested right could not, therefore, be taken away by an executive action. But this authority is 'not helpful to the appellant. The appellant has not acquired any vested right because the main source of said "vested right" is the order passed by the Minister who was not competent to do so.
15. The next case cited by the learned counsel is PLD 1956 FC 46 wherein it has been observed that apart from the question whether the provisions of section 21 of General Caluses Act (X of 1897) applied or not to orders passed under section 401, Cr. P. C. Government must, in the nature of things, possess power to recall such orders. In fact existence of such power is necessary in the case of all the authorities empowered to pass orders under a statutes or regulation.
16. Lucus poenitentiae, I. e. The power of receding till a decisive step is taken, is left, with Government if the unconditional order has not been carried into effect. Till then, there is no reason to restrict the power to modify or cancel such an order. According to the learned counsel if the order of re instatement had not been carried into effect then the Government possessed power to cancel such order, but once the order has been carried into effect no such power vests in the Government.
17. The ratio has been given while considering the order passed by the Government under sec--tion 401, Cr. P. C. In that case, the Government had the power to pass an order put in the present case no such power vested in the Minister. The next case cited by the learned counsel for the appellant is PLD 1965 Quetta 279. But this authority has no relevancy to the facts of the case. In PLD 1965 Quetta 1, it was observed that sanctioning authority can move for withdrawal of the case even after giving sanction for prosecution. So also PLD 1975 B J (?) has no application on the merits of the present cane.
18. The proposition is well settled that an order which is void is a nullity and has to be ignored. As observed earlier the Minister had no jurisdiction to pass the order of restatement and therefore the said order is void an even if it has been acted upon, no vested right has been created in favour of the appellant by such void order. There is difference between order- void ab initio and the valid order passed by competent authority.
19. As regard the void orders, there is no necessity of passing even any formal order for rescission or recalling the order, there is also no necessity of challenging it by way of appeal to the authorities or getting it set aside by the Court. Such an order has no legs to stand upon and it may crumble down at any time and the authorities can recall such an order. But when a lawful and valid order has been passed and it is acted upon, the authorities cannot recall the same by virtue of section 21, General Clauses Act. In support of this proposition the following authorities can be referred:- PLD 1975 SC 331 wherein void and voidable orders have been explained. An order is to be treated as void only when it is made by a Court, Tribunal, or other authority, which had no jurisdiction either as regards the subject matter, the pecuniary value or the territorial limits where the dispute arose.
20. Such an order would amount to "a usurpation of power unwarranted by law", and accordingly it would be a nullity. If on the other hand, an order is made by a Court or authority having the necessary jurisdiction it is not an order void ab initio, but an order which may be set aside on sufficient cause being shown in this behalf. While it is true, as ha been so often stated that fraud vitiates all proceedings, it must nevertheless, be born in mind that allegations of framed generally raise mixed question of law and fact which can only be established in an elaborate inquiry. It is for this reason that an order obtained by fraud can be regarded as' only being voidable at the instance of any party adversely affected by it.
21. The next authority is PLD 1976 SC 208 in which reliance has been placed on Yusuf All Mullah Noor Bhoy v. King (PLD 1959 PC 108). It was observed as follows:- "But if the orders were a nullity there was nothing to appeal against. It may well be that the Government if embarrassed by the orders of acquittal, might have applied to the High Court to quash them. In this connection reference may be made to the decision of the House of Lords in Crane v. Director of Police Prosecution (1951) 2 A C 999 : 90 L J K B 1160. But the omission of Government to take such a step, which was not incumbent, could not convert an order made without jurisdiction into an order passed by Court of competent jurisdiction, Some emphasis was laid on the conduct of the Government of Bombay in appealing against the orders passed by the learned Magistrate, under section 517, Cr. P, C. It may be that the High Court ought not to have entertained such appeals, but no question as to the validity of the orders, made in these appeals is before the Board. It was rightly conceded by Mr. Page that the action of the Government of Bombay in appealing against the orders made by the Magistrate under section 517 could not operate by way of estoppel to confer jurisdiction upon the Magistrate which he did not otherwise possess."
22. The next case is reported in PLD 1976 Kar. 595.
23. "It is well settled that if initial order is found to be void, any sub-, sequent order passed on the basis of that void order also becomes void and is of no legal effect."
24. The same view is taken in PLD 1975 Kar. 495, PLD 1975 Lah. 859, PLD1964SC97.
25. In the result as the order of re-instatement was nullity in law, therefore, this order cannot be pressed into service by the appellant. In view of this matter there is no necessity of examining the other arguments advanced by the learned counsel for the appellant. The appeal is therefore, dismissed with costs.